Sanofi-Aventis U.S. LLC is brandishing a recent U.S. Supreme Court decision to take aim at actions brought by nearly 70 women over its chemotherapy drug Taxotere.
The lawsuits are among more than 1,000 coordinated in federal court in New Orleans alleging that Taxotere, used to treat breast cancer, has caused women to lose their hair permanently. On Thursday, Sanofi filed notices citing the Supreme Court’s June 19 ruling in Bristol-Myers Squibb v. Superior Court of California to oppose the remand of 11 lawsuits to state courts in Missouri and California. In Bristol-Myers, the Supreme Court found that plaintiffs suing in California state court, most of whom weren’t from California, had failed to establish specific jurisdiction against New York-based Bristol-Myers Squibb.
Many lawyers predicted the ruling would be a game-changer in mass torts, where so-called “mass actions” have been brought on behalf of dozens of individuals in venues considered more favorable to plaintiffs, such as California and Missouri state courts.
Bristol-Myers sparked immediate reactions, with a mistrial granted on Jan. 19 — the day the U.S. Supreme Court handed down the case — in a prominent talcum powder case in Missouri’s 22nd Circuit Court in St. Louis.
In the Taxotere litigation, Sanofi is opposing the remand of two cases to the same Missouri court involving 64 plaintiffs, only seven of whom are Missouri residents or were treated in Missouri. “Like in Bristol-Myers Squibb Co., the nonresident plaintiffs are not Missouri residents and do not claim to have suffered harm in Missouri,” wrote Sanofi lawyer Douglas Moore of Irwin Fritchie Urquhart & Moore in New Orleans in the June 22 notice. “Moreover, all the conduct giving rise to the non-Missouri plaintiffs’ claims occurred elsewhere.”
Sanofi filed a similar notice against remand of nine cases to various state courts in California. Seven cases are individual lawsuits brought by California residents. Sanofi’s notice refers to the other two cases, which involve 12 plaintiffs who don’t live in California.
A hearing on the remand motions is scheduled for July 6.
Sanofi also cited Bristol-Myers in a notice filed Wednesday in support of a motion to dismiss all the claims brought against its French affiliates Sanofi and Aventis Pharma S.A. “The Bristol-Myers Squibb decision underscores the absence of specific personal jurisdiction over all claims in this MDL against the French defendants,” Moore wrote.
Moore and Harley Ratliff, a partner at Shook, Hardy & Bacon in Kansas City, Missouri, who also represents Sanofi, did not respond to a request for comment.
Plaintiffs lawyer Michael Kruse of Niemeyer, Grebel & Kruse in St. Louis, who sought to remand the two Missouri cases last month, didn’t respond to requests for comment.
In court filings, he argued that U.S. District Judge Kurt Engelhardt in the Eastern District of Louisiana lacked subject matter jurisdiction over the cases because four of the plaintiffs were residents of New Jersey, where Sanofi’s U.S. headquarters are. He also argued that the plaintiffs in both cases, as well as a third case that just got transferred to Engelhardt’s courtroom involving 26 plaintiffs, including nine Missouri residents, were joined properly under Missouri law because they suffered from the same alleged misconduct. They also had personal jurisdiction because Sanofi sold Taxotere in Missouri.
Earlier this month, Sanofi opposed the remand motion, citing an Oct. 25 decision by U.S. District Judge E. Richard Webber in the Eastern District of Missouri in a separate case. That ruling dismissed a New Jersey plaintiff because she hadn’t established personal jurisdiction over Sanofi in Missouri.
The California attorneys sought remand on a different ground: Their cases named an additional defendant, McKesson Corp., a San Francisco-based distributor of Taxotere. That tie warranted remand to California. But the Bristol-Myers case also involved McKesson, which the Supreme Court found didn’t have enough of a connection to the plaintiffs’ claims to have specific jurisdiction to California.
Ahmed Diab, senior trial attorney at San Diego’s Gomez Trial Attorneys, said his case is different from Bristol-Myers.
“Plaintiffs in that case, irrespective of where they were from, could not trace back where the pills were distributed,” Diab said. “In this case, Taxotere, we can absolutely trace it back to McKesson through discovery.”